Roman v. Ashcroft, No. 1:01CV1236.

• Decision Date: 04 January 2002
• Docket Number: No. 1:01CV1236.
• Citation: 181 F.Supp.2d 808
• Parties: Julio E. ROMAN, Petitioner, v. John ASHCROFT, et al.,<SMALL><SUP>1</SUP></SMALL> Respondents.
• Court: U.S. District Court — Northern District of Ohio

Page 808

181 F.Supp.2d 808

Julio E. ROMAN, Petitioner, v. John ASHCROFT, et al.,¹ Respondents.

No. 1:01CV1236.

United States District Court, N.D. Ohio, Eastern Division.

January 4, 2002.

Julio E. Roman, Oakdale, LA, pro se.

David W. Leopold, Law Office of David Wolfe Leopold, Cleveland, OH, for Petitioner.

Kathleen Lucille Midian, Office of the United States Attorney, Northern District of Ohio, Cleveland, OH, for Respondents.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

This is a petition for a writ of habeas corpus. On September 6, 2001, this Court granted in part and denied in part the motion to dismiss for want of personal jurisdiction and denied the motion to dismiss for improper venue. The Court ordered the respondents to show cause, pursuant to 28 U.S.C. § 2243, why the writ should not be granted. For the foregoing reasons, the Court now grants the writ of habeas corpus.

BACKGROUND

The petitioner, Julio Roman, is a national of the Dominican Republic. His status was adjusted to that of a lawful permanent resident on October 29, 1996. On September 30, 1999, he was convicted in this Court (per Dowd, J.) of violating 18 U.S.C. § 1546(a), relating to the making or use of counterfeit visas, and 42 U.S.C. § 408(a)(7)(C), relating to misuse of a social security number, pursuant to his guilty pleas.² He was sentenced, inter alia, to a fifteen-month term of imprisonment. On January 19, 2000, the office of the Immigration and Naturalization Service in Cleveland issued a notice to appear to Roman while he was serving his sentence. The notice charged that Roman was subject to removal from the United States on account of his criminal convictions. The Service filed an additional charge of deportability on June 21, 2000, which supplemented the allegations in the original notice to appear.

A hearing was held beginning on July 6, 2000, in Oakdale, Louisiana, before an immigration judge. Through his counsel, Roman admitted the allegations in the notice to appear and the supplemental allegations. The immigration judge found that Roman was subject to removal and that he was not eligible for cancellation of removal. The judge therefore ordered Roman removed to the Dominican Republic. On April 20, 2001, the Board of Immigration Appeals affirmed the immigration judge's decision per curiam. On July 11, 2001, the Board denied Roman's timely motion to reopen.

Roman filed the instant petition for habeas corpus on May 21, 2001. He named four respondents: the Attorney General, the Commissioner, and the District Directors of the Cleveland District and the New Orleans District of the I.N.S. On September 6, 2001, the Court granted in part and denied in part the government's motion to dismiss for want of personal jurisdiction and denied the government's motion to dismiss for improper venue. The Court ordered the government, pursuant to 28 U.S.C. § 2243, to show cause why the writ should not be granted.

DISCUSSION

A. INA § 212(h) IS UNCONSTITUTIONAL

A non-legal permanent resident (non-LPR) is inadmissible to the United States if he or she has been convicted of an aggravated felony. 8 U.S.C. § 1101(a)(43). However, a non-LPR convicted of an aggravated felony may seek an adjustment of status,³ and thus remain in the country, by receiving a § 212(h) discretionary waiver. Id. § 1182(h). Section 212(h)(1)(B) of the Immigration and Nationality Act (INA) provides that:

in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawful resident spouse, parent, son, or daughter of such alien.

Id. § 1182(h)(1)(B).

The same is not true of a legal permanent resident (LPR). INA § 212(h)(2) provides that "no waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if ... since the date of such admission the alien has been convicted of an aggravated felony ...." Id. § 1182(h). This revision of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) clearly bars discretionary cancellations of deportation to LPRs convicted of aggravated felonies while permitting these discretionary waivers for illegal aliens convicted of the same underlying offenses. Matter of Michel, 21 I. & N. Dec. 1101 (B.I.A.1998) ("Section 212(h) of the Act, while specifically precluding waiver eligibility for a lawful permanent resident who has been convicted of an aggravated felony, imposes no such restriction on one who has not ben admitted previously as a lawful permanent resident."); Matter of Yeung, Interim Decision 3297 (B.I.A.1996); Rex B. Wingerter, Defenses to Removal Based on Criminal Convictions: INA Waivers, 01-06 Immigr. Briefings 1 (2001). Mr. Roman argues⁴ that this distinction between similarly-situated LPRs and non-LPRs in § 212(h) violates the equal protection clause of the United States Constitution.

Congress's plenary power in the area of immigration and naturalization requires this Court to give special deference to its decision to expel or exclude individuals from this country. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). As Justice Powell explained in Fiallo,

decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary, and the reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.

Id. at 796, 97 S.Ct. 1473 (citing Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976)). Indeed, in the area of immigration and naturalization, "a classification must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Sad v. INS, 246 F.3d 811, 821 (6th Cir.2001) (quoting Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)).

Although Roman is entitled to equal protection under the Fifth Amendment, such congressional distinctions among aliens are subject only to rational basis review. Fiallo, 430 U.S. at 792, 97 S.Ct. 1473; Sad, 246 F.3d at 821 (citing Heller, 509 U.S. at 320, 113 S.Ct. 2637). Thus, a statutory "classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Heller, 509 U.S. at 320, 113 S.Ct. 2637.

Despite this deferential standard of review, Roman argues that there is no rational basis for such a disparity of treatment between similarly-situated LPRs and non-LPRs,⁵ and that INA § 212(h) is therefore unconstitutional and must be struck down. He asserts that "[t]he distinction not only has no rational basis, it is absurd." The Court agrees.

"Rational basis review does not require us to identify the legislature's actual rationale for the distinction; rather, we will uphold the statute if `there are plausible reasons for Congress' action.'" Hamama v. INS, 78 F.3d 233, 237 (6th Cir.1996) (quoting United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980)); Newton v. INS, 736 F.2d 336, 342 (6th Cir.1984) ("[I]t is not necessary for Congress to have drawn the line at the (purportedly) most reasonable point ... but only that it had a rational purpose in drawing the line(s) as it did."). In conjuring up reasons to justify this distinction, "[t]he government need only articulate a rational reason for making the distinction, and need not provide any evidence to support the rationality of the reason." Domond v. INS, 244 F.3d 81, 87 (2d Cir.2001) (citation omitted).

The government attempts to meet this meager burden merely by relying on the three overlapping reasons accepted by the Seventh Circuit as plausible reasons for Congress's distinction between LPRs and non-LPRs in § 212(h).⁶ In examining the reasons advanced by the government, and reviewing the Seventh Circuit's decision in Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001),⁷ the Court would be remiss in finding a single reason purportedly justifying this distinction to be rational. First, the government claims that "the amendment to INA § 212(h) fulfilled Congress' overall purpose in IIRIRA to streamline the removal process and expedite the removal of criminal aliens." It is undisputed that streamlining the alien removal process is a legitimate government purpose. However, it is not enough that the law further a legitimate purpose; the Constitution requires that law must also be rationally related to the achievement of that purpose. The government fails to address this second prong adequately,⁸ and the Court cannot find any rational link between the asserted goal of streamlining the removal process and Congress's actions in denying discretionary waivers only to LPRs. In fact, the Court finds Congress' distinction completely devoid of reason, creating "a distinction which rewards those necessarily guilty of at least two crimes, illegal entry and the `aggravated felony,' by treating them better than individuals guilty only of the same `aggravated felony.'" Song v. INS, 82 F.Supp.2d 1121, 1133 (C.D.Cal.2000). This Court finds absolutely no rational relationship between the government's purported purpose and the steps taken to achieve that purpose.

Second, the government, quoting the Seventh Circuit, alleges that even if § 212(h) does not streamline the removal...